In Depth

A recent Indiana attorney disciplinary order quickly gained the notice of the ABA Journal and legal blogs, prompting
some analysts to predict the ruling would have a chilling effect on lawyers here and around the country. But the case also
involved pursuit of discipline that a court-appointed hearing officer called “disconcerting.”

Crown Point attorney Tim Kelly was reprimanded for testimonials appearing on the Law Tigers website, over
which he had no content control. (Photo submitted)

The Indiana Supreme Court’s April 11 opinion, In the Matter of: Anonymous, 45S00-1301-DI-33, concluded a protracted
attorney discipline case with a private reprimand. The lawyer was found to have made misleading communications regarding legal
services offered in testimonials, and he failed to include his office address on a promotional item.

But the offending testimonials weren’t on the attorney’s website. They appeared on the website for Law Tigers,
a network of the American Association of Motorcycle Injury Lawyers that the lawyer subscribed to. Additionally, the promotional
item that lacked an address did conform with advertising rules at the time it was produced. After a rule change added a requirement
that office addresses appear on advertising, the lawyer acknowledged the change escaped his notice. Once aware of the rule
change, he added his address to Law Tigers promotional items that he passed out at biker events, according to the record.

A cursory review of the case reveals that anonymous is Tim Kelly, a longtime Crown Point personal injury attorney. A closer
examination of the record suggests Indiana Supreme Court Disciplinary Commission attorneys went too far and employed tactics
in prosecuting the case against Kelly that may have violated Rules of Professional Conduct.

“My father practiced law in Indiana for 30-plus years and never had a disciplinary issue. I’ve practiced law
for almost 42 years and this is the only discipline issue I’ve ever had,” Kelly said. “I’ve worked
extremely hard to be ethical, honest, successful and recognized as a good lawyer. … It is really devastating that something
like this resulted in me being disciplined.”

The Supreme Court disciplinary order makes no mention of problems with the commission’s investigation. But Lake Superior
Magistrate Michael Pagano, who presided as hearing officer, concluded his sometimes-blistering report to the court by writing
that he initially believed the commission “overreached.”

Disciplinary Commission Executive Director G. Michael Witte referred inquiries about Kelly’s case to staff attorney
Fredrick Rice, who prosecuted the matter. The commission alleged five rule violations against Kelly but proved just two –
violation of Rule 7.1 for false or misleading communications regarding services, and Rule 7.2(c), failing to include an office
address in a public communication.

Rice urged the Supreme Court to clarify murkier aspects of rules, particularly as they relate to attorney responsibility
for statements appearing on third-party lead-generating platforms such as Law Tigers.

“The commission firmly believes that a written opinion from this Court is needed to (serve) as guidance to all members
of the Indiana Bar,” Rice summed up in response to Pagano’s findings.

So what’s the advice for attorneys who may use any of a growing number of lead-generating platforms or be affiliated
with groups whose websites include testimonials? Might they face discipline for content on sites over which they have no control?

“It’s kind of a hard question to address because the court didn’t address it in the opinion,” Rice
said. “With regard to giving lawyers some kind of guidance in the future, unfortunately, I think the court did not take
that step.”

But Rice said the opinion makes clear that lawyers should consider themselves responsible for any affiliated Internet communication
that appears to benefit them, even if they didn’t publish it themselves.

Kelly’s rule violation arose from testimonials on the Law Tigers site that provided examples of previous results. Offending
statements included: “Law Tigers changed my life in a big way and my family received our fair share of justice,”
and “Law Tigers went above and beyond! The settlement was more than expected!” None of the statements were attributed
to Kelly or his firm, and his firm’s site contained a disclaimer that comported with Rules of Professional Conduct.

While Pagano had trouble with the case against Kelly, he identified the rule violations and recommended the minor sanction
that the court accepted.

“Under the totality of the circumstances of this case, the Court agrees with the hearing officer’s conclusions
that the average viewer would not differentiate between Respondent and the statements about Law Tigers on the AAMIL website
and that Respondent is therefore responsible for objectionable content on the website,” the court held.

Rice downplayed Pagano’s criticism of the commission’s prosecution of Kelly’s case. “The Supreme
Court certainly did not address those issues in their opinion,” Rice said. “I doubt they put a lot of importance
on that, I don’t know.”

‘Test case’ grew testy

Bingham Greenebaum Doll LLP partner Karl Mulvaney defended Kelly before the commission. He argued Kelly was a test case where
greater rule clarity could have been achieved through the rulemaking and amendment processes.

“All I can say is the hearing officer recognizes this was an unusual prosecution and the Supreme Court accepted his
findings,” he said.

Before signing with Law Tigers, Kelly sought an opinion from the Disciplinary Commission, which it declined to provide, according
to the record. He also sought an opinion from the state bar and consulted with nationally recognized attorney Lynda Shely,
outside ethics counsel to AAMIL and a longtime director of lawyer ethics for the State Bar of Arizona.

“Quite frankly, it appears to Mr. Kelly that the Commission’s attempt to use him as a test case amounts to a
due process violation because the Rules of Professional Conduct certainly do not make it clear that participation in (Law
Tigers’) group advertising is a violation of the Rules,” Mulvaney argued in a brief to the court.

Pagano saw abuses and irregularities, too.

“The commission was well aware of (Kelly’s) due diligence,” Pagano wrote. “In fact, following receipt
of his submission, the commission sent (Kelly) a letter informing him it would not be pursuing charges against him. The commission,
for reasons unclear, then reversed itself and proceeded with the instant matter.”

Pagano noted in his findings that Rice had difficulty articulating a proposed sanction when asked, ultimately saying, “…
that’s not the important part of this. The discipline is not the important part. It’s a determination of what
the rules require and what they say.”

“(T)he idea that (Kelly) should be used as a mere instrument to re-write an exceptionally unsettled area of law troubles
me deeply, especially in light of the great lengths (Kelly) went to in ascertaining whether his participation in AAMIL would
cause him disciplinary grief,” Pagano wrote.

He wrote that he wasn’t certain if the commission’s pursuit of cases where rules are unsettled and the respondent
has been diligent was common. He invoked Justice Steven David’s opinion in Fry v. State, 990 N.E.2d 429 (Ind.
2013): “(T)hat’s ‘the way we’ve always done it’ is a poor excuse … for continuing to
do something wrong.”

Pagano declined to answer questions about the case.

Mulvaney argued in court documents that commission staff also appeared to violate Professional Rule of Conduct 4.1 by having
an intern engage in a live chat session on the Law Tigers website in an unsuccessful attempt to generate an anonymous inquiry
to Kelly’s office. Rule 4.1 requires truthfulness in statements to others, and the intern identified himself in the
live chat as a typical Web user browsing the site as he made general inquiries about the service.

Pagano declined to weigh whether commission staff may have violated rules. “I will not address the merits of this suggestion,
other than to say I did find the commission’s tactics in this regard disconcerting in light of the dictates of the Rule,”
he wrote.

At one point, Pagano’s irritation with the commission’s tactics precluded consideration of some of its arguments.
“I shall not engage in further analysis of these issues out of fear it would constitute positive reinforcement of behavior
that should not be encouraged,” he wrote.

The commission petitioned for review after receiving Pagano’s findings and conclusions, but the Supreme Court denied
the request. “The hearing officer’s suggestion that the commission staff engaged in some form of deceptive or
dishonest ‘pretexting’ … is contrary to the evidence presented,” Rice wrote.

The intern “in no way misrepresented anything about himself or what he was doing in his interactions with the Law Tigers
live chat operator,” Rice argued.

Unsettled rules

Indiana University Robert H. McKinney School of Law Professor David Orentlicher said rulings from the Supreme Court of the
United States and other federal courts have found some state attorney advertising rules violate First Amendment free speech
protections or impermissibly restrain trade.

“In this case, the only question is, ‘Did he violate the rules?’ not ‘Are the rules valid under the
Constitution?’” Orentlicher said. “That’s an important question that’s lurking here.”

Shely, the Arizona legal ethics attorney, said Kelly’s discipline runs counter to prevailing trends. Kelly’s
disciplinary ruling could be extended to any attorney who’s affiliated with the Association of Professional Responsibility
Lawyers, for instance. Shely noted the Anonymous opinion came shortly after that group concluded a conference on
attorney advertising regulation.

“You have each state trying to regulate lawyer advertising,” Shely said, “when in fact you have things
like YouTube and the Internet. … People all over the world will look at that information.”

Shely said the Federal Trade Commission also has warned against overzealous rules enforcement if speech is truthful. “I
understand there is a mindset among some lawyers that we’re a profession and we shouldn’t have to advertise and
it’s unseemly, but that’s not realistic in this day and age,” she said. “It’s also not constitutional.”

Mulvaney said the testimonials for which Kelly was disciplined pale in comparison to numerous other examples of lawyer advertising.

“The contours of what advertising is, is in something of a state of flux and it’s probably too early to tell
how this will all play out around the country,” Mulvaney said, “but it’s a conversation worth having. …
In the scheme of things, my client’s conduct shows every attempt to be in compliance with the rules.”

For Kelly, the experience leaves a blemish on an otherwise clean record dating to 1972, and it stings.

“The grievances that formed the basis for the disciplinary action came from my competitors,” he said. “The
primary purpose of the commission is to protect the public, and the public wasn’t complaining.”•

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Conversations

5 Comments

To clarify my previous comments, Witte was a judge in Dearborn County and lost re-election. That might will explain his sensitivity
when it comes to attorneys who criticize judges as Witte quite likely was criticized by Dearborn County attorneys when he
was defeated for re-election. My research shows Indiana is No. 1 in the country when it comes to pursuing discipline for attorneys
who criticize judges.

John, your praise of Witte as having a "fine career in public service" doesn't seem supported by the record. He was so disliked
by the Dearborn County bar that he was ousted in a Republican primary down there. Then, as county attorney, he used his position
to go after a Commissioner who didn't support him, trying to get him prosecuted for a Hatch Act violation. Witte has shown
a lack of temperament and poor judgment for his current position. Attorneys complained about how the Commission was run under
Lundberg but it has gotten even worse under Witte. There is nothing about Witte's tenure on the Commission that suggests he
is doing a fine job. He has demonstrated time and time again exceedingly poor judgment in going after attorneys for minor
alleged violations while ignoring for years (until the FBI finally took action) the conduct of people like Conour who are
stealing from clients. I know of an attorney who was found in court to have hidden a million dollars in legal income. Did
Witte file charges. No. That unfortunately is typical of this Commission. There need to be changes at the top and a thorough
investigation of the Commission's activities and the disciplinary process in general

Indiana shows that it continues going backward into the dark ages while the rest of the world moves forward. Great job ruining
this poor lawyer's otherwise sterling record over a complaint made BY A COMPETITOR.

Indiana shows that it continues going backward into the dark ages while the rest of the world moves forward. Great job ruining
this poor lawyer's otherwise sterling record over a complaint made BY A COMPETITOR.

I don't understand what the hell is going on at the DC. Witte is a bright lawyer with a fine career in public service. And
the other staff are decent folks too. But the pattern of overly punitive decisions is clear and it seems that they are not
seeing the forest just looking at a bunch of trees. Again, the discipline is unwarranted and the prosecution overzealous.
This decision puts hundreds of Indiana lawyers with fine ethical standards into jeopardy for their inability to control third
party sites in which they participate and add all the requisite disclaimers and all that crap. Is a lawyer supposed to call
everything he or she says advertising? THe rule is not clear, the conduct prohibited is not knowable, it potentially punishes
truthful speech. All bad. And you know what else ticks me off? Lawyers have to abide by a bunch of restrictions that absolutely
no other industry has to suffer. Again lawyers are being singled out and the most utterly inexplicable thing is that it is
lawyers who are unfairly imposing this stuff on us. On and nine times out of ten, I would bet it isn't "the public" who is
being protected by stuff like this, it is financially well endowed corporate monstrosities who fear the courts. I may be called
a knuckle dragging "right winger" but count me in with the trial lawyers on this one.

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